Being served in a civil or family law court case can be a jarring experience, particularly if you were not expecting to be served. While being served is almost never a pleasant experience, understanding the intricacies of service and the next steps you should take can help you plan for a positive resolution to your case.
What happens when you are served?
When you are served, you are generally given a copy of a complaint or petition and a summons. The complaint or petition explains why you are being sued and the summons is a document explaining what the complaint means, what is expected of you next, and sometimes, when and where a hearing on your case will be. In Minnesota state courts, unlike in federal courts, the complaint can be very vague. Minnesota adheres to a standard known as “notice pleading” where all that is required is “a short and plain statement of the claim showing that the pleader is entitled to relief.” Federal courts adhere to “plausibility pleading” where the complaint must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
If you are being sued, upon being served, you are considered a defendant, as you are now defending yourself from a case being brought against you. If you are responding to a petition, you are known as the respondent. You might be served with a petition if you are being brought into court for child support, child custody, paternity or another family law purpose.
What is considered proper service?
Minn. R. Civ. P. 4.01-.04 explain what steps are necessary to serve a person in Minnesota. Proper service occurs when you are presented with a summons and complaint or petition. A police officer or any other person more than 18 years of age and not a party to the action, may make service of a summons or other process. That means that the opposing party in the suit cannot be the person that serves you. However, the court does not serve the papers for the plaintiff. It is up to the plaintiff to ensure the defendant is properly served.
If an individual person is being sued, the service papers must be delivered to that person directly, or left with a person over 18 years old at their legal residence. If the person being sued is in jail or prison, the chief executive officer at the institution can be served. If the individual being sued is under 14 years old, the father, mother, or guardian must be served. If a partnership or association is being sued, a member or the managing agent of the partnership or association should be served. If a corporation is being sued, an officer of the corporation or a managing agent should be served. If service on a company is difficult, the Office of the Minnesota Secretary of State will accept and forward service of process for both domestic and foreign companies. If the state is being sued, the Attorney General is served.
To avoid the hassle of actually tracking down and physically serving the defendant or respondent, plaintiffs are given the option to ask for a waiver of service – or asking the defendant/respondent to waive the formalities of service and lieu of being notified of the suit in an informal way – usually by mail. Often, plaintiffs will send a letter asking for waiver of service before commencing formal service. Plaintiffs will only follow through with formal service if the defendant/respondent does not waive formal service. A defendant/respondent might waive formal service to decrease the chance of being served at work or in a public place, which can be disruptive and embarrassing, or because they simply have no other choice – they are going to be served anyway. While lawsuits are inherently contentious, starting off a suit by “playing fair” by waiving service can set the stage for a more civilized relationship between the parties and attorneys during the suit.
Also, service must be completed before a statute of limitations runs on a claim. Service “tolls” or pauses the statute of limitations. If service is not completed before the statute of limitations runs, it is likely the case will be unable to be brought. Sometimes defendants will avoid service at all costs in order to run down the statute of limitations if the end of the statute of limitations is close. The statute of limitations running out might be a reason to not waive service.
Improper service can void your responsibility to appear in court and can nullify a claim. However, if you are considering not acting because of improper service, you should discuss your plan with an attorney, as failing to appear can result in a default judgement against you. A default judgement means that you automatically lose your case.
Minnesota Hip Pocket Service
Minnesota is unique in the flexibility given to plaintiffs regarding the timeline of service. In Minnesota, a person can be served without any document being filed with the court. This is known as “hip pocket service” and is codified by Minn. R. Civ. P. 3.01. In Minnesota, a person can be served a complaint and summons, signed by the plaintiff’s attorney in lieu of the court’s signature. This complaint and summons will look identical in all other ways and will ask for an answer. While this service tolls the statute of limitations, it gives both parties a year to resolve the case before any document has to be filed with the court. A defendant on the receiving end of hip pocket service can sometimes be confused because there is no court file number and no signature with the court on the documents. However, like a formal document commencing a lawsuit filed with the court, the hip pocket documents still need to be responded to and is a valid form of service when done correctly.
The benefits of hip pocket service are that no filing fees need to be paid, the court system is not congested by suits that could have been resolved out of court, and the lawsuit is not made public, protecting both the defendant’s and plaintiff’s privacy. While the defendant is on notice that legal action can be taken, hip pocket service gives the parties an opportunity to resolve a case without ever filing a document with the courts. Because of the cooperative opportunity that hip pocket service presents, it is often suggested that hip pocket service is a very “Minnesota” way of resolving a case.
What responsibilities do I have if I am served?
The summons included with the complaint will lay out your legal responsibilities regarding the next steps to take in your case. In Minnesota state court, you must respond to the complaint with an “answer.” You usually must respond with and answer within 20-30 days. An answer is a document that you file with the court that admits or denies every contention made in the complaint. If you do not respond with an answer, a default judgement may be entered against you. As noted above, this means that the plaintiff gets the relief they are asking for without the defendant being able to argue any defense.
Along with responsibilities, defendants and respondents also have rights. Defendants can file a counterclaim, or a document claiming that the plaintiff in the case was a wrongdoer and actually owes the defendant compensation. In some circumstances, a counterclaim must be brought in the current suit or it can never be brought in the future. These are called “compulsory counterclaims.” A counterclaim is compulsory if it arises out of the transaction that is the subject matter of the opposing party’s claim. For example, if a person A is suing for damage to their car in a car accident, the person they are suing, person B, must bring a claim against person A for damage to person B’s car, claiming person A was at fault, or they are forever barred from bringing this claim. Permissive counterclaims are any claims against an opposing party not arising out of the transaction that is the subject matter of the opposing party’s claim. For example, in the above example, person B would be allowed to bring a counterclaim against person A for anything unrelated to the car crash, although person B can still decide to bring the unrelated claim in the future after the car crash case has resolved.
Permissive and compulsory counterclaims are allowed/mandated for judicial economy reasons, or put simply, to save the court time and energy. If the two parties are already in court, they might as well resolve all claims they have against one another.
Contact St. Paul Attorney John Lesch at Lesch Law Firm
Consulting with an experienced attorney is important if you are to understand the full range of choices and responsibilities open to you at the commencement of your case. Let the experienced attorneys at Lesch Law Firm guide you through the process to achieve the best possible results. View our case results and contact us now at 651-302-7009 for a free consultation.